evidence

Posted by David Adelsteinon April 07, 2016Appeal, Evidence, Standard of Review /
Comments Off on Difference Between Lay Opinion Testimony and Expert Opinion Testimony

Although I have numerous blog articles regarding the appellate standard of review when it comes to the admissibility of evidence, it is important to remember that “[a] trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion; however, the trial court’s interpretation of the evidence code is reviewed de novo.” L.L. v. The State of Florida, 41 Fla.L.Weekly D854a (Fla. 3d DCA 2016).

In L.L., a criminal case, a police officer testified that he smelled the strong odor of marijuana from the defendant and that a plastic bag in defendant’s possession contained marijuana. The defendant objected that the officer’s opinions about the smell being marijuana and the substance in the bag being marijuana was an improper lay opinion and constituted expert opinion testimony (governed by the Daubert standard). The trial court allowed this testimony and the issue on appeal was whether such testimony was expert opinion testimony or proper lay opinion (fact witness) testimony.

The appellate court held that the officer’s testimony or opinions about the smell and substance being marijuana was proper lay witness opinion testimony governed under Florida Evidence Code 90.701:

If a witness is not testifying as an expert, the [lay] witness’s testimony about what he or she perceived may be in the form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness’s use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

The appellate court’s holding included a very good discussion explaining in detail why the officer’s opinion was proper lay opinion testimony as opposed to expert opinion testimony governed by the Daubert standard:

In addition to the requirement that lay opinion testimony be based on the personal knowledge and perception of the witness, the Advisory Committee Notes explain that courts should consider the witness’s method of reasoning: “the distinction between lay and expert witness testimony is that lay testimony ‘results from a process of reasoning familiar in everyday life,’ while expert testimony ‘results from a process of reasoning which can be mastered only by specialists in the field.‘ ” …As one scholar has explained:

[T]he distinction lies in whether the witness’s reasoning process entails a reliable methodology beyond everyday reasoning. A lay witness, however experienced, offers no methodology beyond ordinary reasoning. An expert is equipped to draw more sophisticated, yet still reliable, inferences. The crux of expert testimony is that it presents inferences that are supported through the application of a reliable methodology. Thus, the witness who relies on experience to support an expert opinion cannot simply claim insights arrived at by applying everyday reasoning to that experience base, but must explain the methodology employed to reach that opinion. An experienced witness who does not bring such methodology to bear should be subject to the restrictions of the lay opinion rule.

***

One important reason the Daubert standard [governing the admissibility of expert witness opinions] imposes a more demanding reliability inquiry upon expert opinion testimony is that the opinion results from a methodology or reasoning process that might be foreign to the trier of fact….But in cases such as the one now before us, even if the trier of fact does not have the personal experience necessary to identify the substance in question, the reasoning process is not “foreign in kind.” Many people who have seen and smelled marijuana would be able to recognize it in the same way they recognize anything else they have seen or smelled before.

***

Here, Officer Munecas’s reasoning process is nothing that requires a specialist in the field of drug identification; it is reasoning familiar in everyday life.

***

Finally, we hasten to add that although the more demanding Daubert admissibility standard does not apply to lay opinion testimony, there is nevertheless a reliability inquiry. Not only must lay opinion testimony be based on the witness’s personal knowledge, section 90.604, Florida Statutes, and perceptions, section 90.701, Florida Statutes, but the witness must have sufficient personal knowledge to support the opinion.

L.L., supra (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Posted by David Adelsteinon October 06, 2015Evidence, Standard of Review /
Comments Off on Ruling on Admissibility of Evidence Reviewed Under Abuse of Discretion

The trial court allowed certain testimony / evidence to be introduced at trial. I objected, but the trial court overruled my objection. That evidence was introduced and I lost the trial. I am considering an appeal based on the trial court’s admissibility of this evidence.

For example, in Cantore, a medical malpractice action, a pediatric neurosurgeon that treated a minor answered hypothetical questions. The jury returned a verdict in favor of the defendant hospital and the plaintiff appealed. The plaintiff argued that the the trial court should not have admitted the testimony of the treating doctor in answering hypothetical questions. The appellate court, in the context of the medical malpractice action, found that the trial court did not abuse its discretion in admitting this testimony.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Posted by David Adelsteinon October 02, 2015Evidence /
Comments Off on Arbitration and the Lax Rules of Evidence

I’m sure you have heard of arbitration. Arbitration is a method of dispute resolution. If parties want to arbitrate their dispute as opposed to litigate their dispute in court, they need to include an arbitration provision in their contract. This is because arbitration is a creature of contract and you cannot be compelled to arbitrate a dispute that you did not contractually agree to arbitrate as the method of dispute resolution. (If you are arbitrating your dispute, then you are not litigating your dispute in court.)

In arbitration, the rules of evidence are lax. For example, Rules 35 and 36 of the Construction Industry Arbitration Rules promulgated by the American Arbitration Association state in relevant portion:

R-35. Evidence

(a) The parties may offer such evidence as is relevant and material to the dispute and shall produce such evidence as the arbitrator may deem necessary to an understanding and determination of the dispute. Conformity to legal rules of evidence shall not be necessary.

(b) The arbitrator shall determine the admissibility, relevance, and materiality of the evidence offered. The arbitrator may request offers of proof and may reject evidence deemed by the arbitrator to be cumulative, unreliable, unnecessary, or of slight value compared to the time and expense involved. All evidence shall be taken in the presence of all of the arbitrators and all of the parties, except where: 1) any of the parties is absent, in default, or has waived the right to be present, or 2) the parties and the arbitrators agree otherwise.

(c) The arbitrator shall take into account applicable principles of legal privilege, such as those involving the confidentiality of communications between a lawyer and client.

R-36. Evidence by Affidavit and Post-Hearing Filing of Documents or Other Evidence

(a) The arbitrator may receive and consider the evidence of witnesses by declaration or affidavit, and shall give it such weight as the arbitrator deems it entitled to after consideration of any objection made to its admission.

These rules are designed to be much more liberal and flexible than the rules of evidence that govern litigation in court. These rules give the arbitrator tremendous discretion to weigh the value of the evidence presented and progress the arbitration forward based on his/her understanding of the evidence and issues. Naturally, with such lax rules of evidence, it is easier to present and admit evidence in arbitration than litigation, especially since arbitration does not require you to conform to the rules of evidence. Sometimes this is beneficial. Sometimes it is not.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Posted by David Adelsteinon May 01, 2015Evidence /
Comments Off on Pinning the Poor Against the Rich at Trial…Nope due to the Presumed Prejudice!

We all like to root for the underdog and want the underdog to succeed. In this regard, there is something compelling about pinning the poor against the rich. We perhaps seek redemption for the poor. So, how does this play out in a jury trial? The answer is it does not and should not. Why; because of the presumed prejudice to the rich and the tendency to punish the deep pocket. By eliciting this evidence, a party is exposing itself to a mistrial.

“Florida has a long-standing rule that no reference should be made to the wealth or poverty of a party, nor should the financial status of one party be contrasted with the other’s. Courts are very adamant about this rule because jurors have a tendency to favor the poor as against the rich, especially when provoked by inflammatory evidence.”

Hurtado v. Desouza, 2015 WL 1727851, *3 (Fla. 4th DCA 2015) (internal quotations and citations omitted) (finding that error was not harmless when plaintiff told jury that he lost his home in foreclosure, did not have a lot of money, and could not seek medical treatment because he could not afford health insurance).

While it is certainly appealing to pin the poor against the rich at trial, this appeal will oftentimes be perceived as creating an unfair prejudice to the rich and warrant a mistrial!

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Posted by David Adelsteinon April 16, 2015Appeal, Evidence /
Comments Off on Purpose of a Motion in Limine to Exclude Evidence

In order to avoid prejudicial or irrelevant evidence from being introduced to the jury by the adverse party, a party will file a motion in limine to exclude this evidence. “Generally, the purpose of a motion in limine is to prevent the introduction of improper evidence, the mere mention of which at trial would be prejudicial.” Buy-Low Save Centers, Inc. v. Glinert, 547 So.2d 1283, 1284 (Fla. 4th DCA 1989). Stated differently: “The purpose of a motion in limine is to exclude irrelevant and immaterial matters, or to exclude evidence when its probative value is outweighed by the danger of unfair prejudice.” Devoe v. Western Auto Supply Co., 537 So.2d 188, 189 (Fla. 2d DCA 1989) (internal citation omitted).

There are times the basis of an appeal stems from the trial court granting or denying a motion in limine. If a trial court grants a motion in limine, this means the trial court is excluding evidence a party otherwise wants to introduce. If a trial court denies a motion in limine, this means the trial court is allowing evidence to be introduced that an adverse party contends is irrelevant or prejudicial. “The standard of review of a trial court’s ruling on a motion in limine is abuse of discretion.” Aarmada Protection Systems 2000, Inc. v. Yandell, 73 So.3d 893, 898 (Fla. 4th DCA 2011).

If a party violates a court’s order granting a motion in limine, the court could declare a mistrial and order a new trial.See Azriel v. La Marca, 722 So.2d 952 (Fla. 3d DCA 1998); Fischman, M.D. v. Suen, M.D., 672 So.2d 644 (Fla. 4th DCA 1996). For instance, if a trial court grants a motion in limine and excludes certain evidence or testimony, and the adverse party disregards the court’s order and introduces that evidence or testimony, the court could declare a mistrial and order a new trial upon the jury returning a verdict in favor of the adverse party.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

The standard of appellate review regarding the trial court’s admissibility of evidence is an abuse of discretion. See Vavrus v. City of Palm Beach Gardens, 927 So.2d 992 (Fla. 4th DCA 2006); Castaneda ex rel. Cardona v. Redlands Christian Migrant Ass’n, Inc., 884 So.2d 1087 (Fla. 4th DCA 2004). Naturally, a party needs to preserve this issue by objecting to the admissibility of the evidence. If a trial court sustains an objection and excludes the evidence, the party trying to introduce the evidence should make a proffer / offer of proof.

On the other hand, the standard of review for the trial court’s interpretation of a contract, which is a question of law, is subject to the much more favorable de novo standard of appellate review. See Jenkins v. Eckard Corp., 913 So.2d 43 (Fla. 1st DCA 2005); RNK Family Limited Partnership v. Alexander-Mitchell Associates, 788 So.2d 1035 (Fla. 2d DCA 2001). This means the appellate court can examine the contract and reach a completely different legal interpretation than the trial court. SeeLeisure Resorts, Inc. v. City of West Palm Beach, 864 So.2d 1163 (Fla. 4th DCA 2003). Best explained by the Fourth District Court of Appeal in Gilman Yacht Sales, Inc. v. FMB Investments, Inc.766 So.2d 294, 296 (Fla. 4th DCA 2000) (internal citations omitted):

“The interpretation of a written contract is a question of law to be decided by the court. An appellate court is not bound to give the trial judge’s interpretation or construction of a contract any weighted presumption of correctness. To the contrary, a decision construing a contract is reviewable on appeal under a de novo standard of review, and therefore we are required to consider for ourselves anew the meaning of the disputed contractual language.”

It is important for parties to know the standard(s) of appellate review they may confront when appealing a trial court’s ruling as the standard of review will dictate the amount of deference the appellate court is required to give the trial court’s ruling. A de novo standard of review is much more favorable than an abuse of discretion standard of review. The appellate standard of review is an essential component of appellate practice and will be identified in an appellate brief. And, besides the standard of review, a party defending an appeal (appellee) may argue that to to the extent the trial court erred, such error was nothing more than a harmless error that did not contribute to the verdict.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Posted by David Adelsteinon February 28, 2015Evidence /
Comments Off on Photographic / Video Evidence Needs to be Relevant and Outweigh any Unfair Prejudice to the Opposing Party

During trial, a party may move to admit photographic evidence. The opposing party, however, may object based on either the relevancy of the evidence or, if relevant, that the probative value of the evidence is outweighed by the unfair prejudice to that party if the evidence is admitted.

However, not all relevant evidence is admissible. Florida Statute s. 90.403 provides in material part, “Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” Thus, if the relevant evidence is substantially outweighed by its prejudicial effect, a trial court may deem this evidence inadmissible. The trial court has broad discretion in determining the admissibility of relevant evidence. Zack v. State, 911 So.2d 1190, 1210 (Fla. 2005) (“A trial court has broad discretion in determining the relevance of evidence, and such a determination will not be disturbed [on appeal] absent an abuse of discretion.”).

For instance, in Zelaznik, a video in a personal injury action was introduced into evidence showing portions of the injured plaintiff’s surgery. The defendant appealed that the trial court abused its discretion in admitting this video because the probative value of the video was outweighed by its unfair prejudice to the defendant since the video was unfairly graphic. (Before the video was shown to the jury, the trial court viewed the video and did not deem it unfairly prejudicial.) The video was introduced into evidence by the doctor that performed the surgery and the doctor testified the video would aid him in explaining the plaintiff’s surgery to the jury. The appellate court affirmed finding that there was nothing to support that the trial court abused its discretion by admitting the video.

Considerations:

The introduction of photographic or video evidence is based on the relevancy of that evidence.

Not all relevant evidence is admissible – the evidence needs to be balanced by whether it will cause unfair prejudice, confusion, is aimed to mislead the jury, or is needlessly cumulative.

The trial court has discretion to determine whether the relevant evidence’s probative value is outweighed by the evidence’s prejudicial effect, misleading effect, confusing effect, or is needlessly cumulative.

In introducing photographic or demonstrative-related evidence (or a demonstrative aid), it is important to have the witness testify that the evidence / aid will assist him/her in explaining an issue to the jury.

The trial court’s discretion will not be disturbed on appeal absent an abuse of that discretion.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.